-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: keymaster@town.hall.org Originator-Key-Asymmetric: MFkwCgYEVQgBAQICAgADSwAwSAJBALeWW4xDV4i7+b6+UyPn5RtObb1cJ7VkACDq pKb9/DClgTKIm08lCfoilvi9Wl4SODbR1+1waHhiGmeZO8OdgLUCAwEAAQ== MIC-Info: RSA-MD5,RSA, mhY+N+85rR2SxQQx/seCl0Ji55f7Zb7lRqvlS0qg3OyMMqdhs9wd7jSRCc4TI3UX fH0aOjXV3IdA/iEsOm/v/g== 0000950135-95-001388.txt : 19950622 0000950135-95-001388.hdr.sgml : 19950622 ACCESSION NUMBER: 0000950135-95-001388 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19950621 EFFECTIVENESS DATE: 19950710 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: GENZYME CORP CENTRAL INDEX KEY: 0000732485 STANDARD INDUSTRIAL CLASSIFICATION: PHARMACEUTICAL PREPARATIONS [2834] IRS NUMBER: 061047163 STATE OF INCORPORATION: MA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 033-60437 FILM NUMBER: 95548296 BUSINESS ADDRESS: STREET 1: ONE KENDALL SQUARE CITY: CAMBRIDGE STATE: MA ZIP: 02139 BUSINESS PHONE: 6172527500 MAIL ADDRESS: STREET 1: ONE KENDALL SQUARE CITY: CAMBRIDGE STATE: MA ZIP: 02139 S-8 1 FORM S-8 FOR GENZYME CORPORATION 1 As filed with the Securities and Exchange Commission on June 21, 1995 REGISTRATION NO. 33- __________ ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D. C. 20549 _________________ FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 _________________ GENZYME CORPORATION (Exact name of registrant as specified in its charter) MASSACHUSETTS 06-1047163 (State or other jurisdiction of incorporation) (I.R.S. Employer Identification No.)
ONE KENDALL SQUARE, CAMBRIDGE, MASSACHUSETTS 02139 (Address of Principal Executive Offices) _________________ 1990 EQUITY INCENTIVE PLAN (Full Title of the Plan) HENRI A. TERMEER, PRESIDENT Genzyme Corporation One Kendall Square Cambridge, Massachusetts 02139 (617) 252-7500 (Name, address and telephone number of agent for service) with copies to: MAUREEN MANNING, ESQUIRE Palmer & Dodge One Beacon Street Boston, Massachusetts 02108 (617) 573-0304 _________________ CALCULATION OF REGISTRATION FEE - ---------------------------------------------------------------------------------------------------------------
Title of each class of Amount to be Proposed maximum Proposed maximum Amount of securities to be registered registered offering price aggregate offering registration per share(1) price(1) fee - --------------------------------------------------------------------------------------------------------------- General Division Common 1,100,000 shares(2) $39.625 $43,587,500 $15,030.18 Stock, $0.01 par value - --------------------------------------------------------------------------------------------------------------- (1) Estimated solely for the purpose of determining the registration fee and computed pursuant to Rule 457(h) and based upon the average of the high and low sale prices on June 19, 1995 as reported by the Nasdaq National Market System. (2) This Registration Statement registers an additional 1,100,000 shares of General Division Common Stock under the 1990 Equity Incentive Plan. An aggregate of 6,599,385 shares of General Division Common Stock ("General Stock", formerly Common Stock) and 2,000,000 shares of Tissue Repair Division Common Stock ("TR Stock") have previously been registered under such plan (SEC File Nos. 33-8881, 33-15616, 33-26329, 33-29918, 33-35067, 33-37236, 33-41933, 33-55656, 33-68188 and 33-58359). Pursuant to Rule 416 under the Securities Act of 1933, the above listed registration statements also cover shares of TR Stock issuable under such plan to the holders of options to purchase General Stock as a result of anti-dilution adjustments made in connection with the dividend on December 23, 1994 of TR Stock to all holders of record of General Stock on December 16, 1994.
================================================================================ 2 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. - ------------------------------------------------- The following documents filed with the Securities and Exchange Commission (the "Commission") are incorporated herein by reference: (a) The Registrant's latest annual report on Form 10-K filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"). (b) All other reports of the registrant filed pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the annual report referred to in (a) above. (c) The description of the Registrant's General Division Common Stock contained in the Registrant's Registration Statement on Form 8-B filed on February 28, 1992, as amended by Form 8-B/A filed on March 31, 1995, including any further amendment or report filed hereafter for the purpose of updating such description. (d) The description of the Registrant's General Division Common Stock Purchase Rights contained in the Registrant's Registration Statement on Form 8-A filed on March 23, 1989, as amended by Form 8-A/A on November 28, 1994, including any amendment or report filed for the purpose of updating such description. All documents filed after the date of this Registration Statement by the Registrant pursuant to Section 13(a), 13(c), 14 and 15(d) of the Exchange Act and prior to the filing of a post-effective amendment that indicates that all shares of General Division Common Stock offered hereunder have been sold or which deregisters all shares of General Division Common Stock remaining unsold shall be deemed to be incorporated by reference herein and to be a part hereof from the date of the filing of such reports and documents. Item 4. Description of Securities. - ----------------------------------- Not Applicable. Item 5. Interests of Named Experts and Counsel. - ------------------------------------------------ The validity of the General Division Common Stock offered hereby will be passed upon for the Registrant by Palmer & Dodge, Boston, Massachusetts. Peter Wirth, a partner of Palmer & Dodge, is Clerk of the Registrant. Item 6. Indemnification of Directors and Officers. - -------------------------------------------------- Section 67 of chapter 156B of the Massachusetts Business Corporation Law grants the Registrant the power to indemnify any director, officer, employee or agent to whatever extent permitted by the Registrant's Restated Articles of Organization, Bylaws or a vote adopted by the holders of a majority of the shares entitled to vote thereon, if such indemnitee acted (a) in good faith in the reasonable belief that his action was in the best interests of the corporation or (b) to the extent that the matter for which indemnification is sought relates to service with respect to an employee benefit plan, in the best interests of the participants or beneficiaries of such employee benefit plan. Such indemnification may include payment by the Registrant of expenses incurred in defending a civil or criminal action or proceeding in advance of the final disposition of such action or - 2 - 3 proceeding, upon receipt of an undertaking by the person indemnified to repay such payment if he shall be adjudicated to be not entitled to indemnification under the statute. Article VI of the Registrant's Bylaws provides that the Registrant shall, to the extent legally permissible, indemnify each person who may serve or who has served at any time as a director or officer of the corporation or of any of its subsidiaries, or who at the request of the corporation may serve or at any time has served as a director, officer or trustee of, or in a similar capacity with, another organization or an employee benefit plan, against all expenses and liabilities (including counsel fees, judgments, fines, excise taxes, penalties and amounts payable in settlements) reasonably incurred by or imposed upon such person in connection with any threatened, pending or completed action, suit or other proceeding, whether civil, criminal, administrative or investigative, in which he may become involved by reason of his serving or having served in such capacity (other than a proceeding voluntarily initiated by such person unless he is successful on the merits, the proceeding was authorized by the corporation or the proceeding seeks a declaratory judgment regarding his own conduct). Such indemnification shall include payment by the Registrant of expenses incurred in defending a civil or criminal action or proceeding in advance of the final disposition of such action or proceeding, upon receipt of an undertaking by the person indemnified to repay such payment if he shall be adjudicated to be not entitled to indemnification under Article VI, which undertaking may be accepted without regard to the financial ability of such person to make repayment. The indemnification provided for in Article VI is a contract right inuring to the benefit of the directors, officers and others entitled to indemnification. In addition, the indemnification is expressly not exclusive of any other rights to which such director, officer or other person may be entitled by contract or otherwise under law, and inures to the benefit of the heirs, executors and administrators of such a person. The Registrant also has in place agreements with certain officers and directors which affirm the Registrant's obligation to indemnify them to the fullest extent permitted by law and contain various procedural and other provisions which expand the protection afforded by the Registrant's Bylaws. Section 13(b)(11/2) of chapter 156B of the Massachusetts Business Corporation Law provides that a corporation may, in its Articles of Organization, eliminate the directors' personal liability to the corporation and its stockholders for monetary damages for breaches of fiduciary duty, except in circumstances involving (i) a breach of the director's duty of loyalty to the corporation or its stockholders, (ii) acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) unauthorized distributions and loans to insiders, and (iv) transactions from which the director derived an improper personal benefit. Section VI.C.5 of the Registrant's Restated Articles of Organization provides that no director shall be personally liable to the corporation or its stockholders for monetary damages for any breach of fiduciary duty as a director, except to the extent that such exculpation is not permitted under the Massachusetts Business Corporation Law as in effect when such liability is determined. Item 7. Exemption from Registration Claimed. - -------------------------------------------- Not Applicable. Item 8. Exhibits. - ------------------ See Exhibit Index immediately following signature pages. Item 9. Undertakings. - ---------------------- (a) The undersigned Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: - 3 - 4 (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represents a fundamental change in the information set forth in this Registration Statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement; PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post- effective amendment by those paragraphs is contained in periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this Registration Statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post- effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the provisions referred to in Item 6 hereof, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. - 4 - 5 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Cambridge, Commonwealth of Massachusetts, on this 19th day of June, 1995. GENZYME CORPORATION By /s/ Henri A. Termeer ---------------------------- Henri A. Termeer, President POWER OF ATTORNEY We, the undersigned officers and directors of Genzyme Corporation, hereby severally constitute and appoint Henri A. Termeer, David J. McLachlan, Mark A. Hofer, Evan M. Lebson and Peter Wirth, and each of them singly, our true and lawful attorneys-in-fact, with full power to them in any and all capacities, to sign any and all amendments to this Registration Statement on Form S-8 (including any post-effective amendments thereto), and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that each of said attorneys-in-fact may do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated:
SIGNATURE TITLE DATE --------- ----- ---- /s/ Henri A. Termeer Director and Principal June 19, 1995 - -------------------------------------- Executive Officer /s/ David J. McLachlan Principal Financial and June 19, 1995 - -------------------------------------- Accounting Officer /s/ Constantine E. Anagnostopoulos Director June 19, 1995 - -------------------------------------- /s/ Douglas A. Berthiaume Director June 19, 1995 - -------------------------------------- /s/ Henry E. Blair Director June 19, 1995 - -------------------------------------- /s/ Robert J. Carpenter Director June 19, 1995 - -------------------------------------- /s/ Charles L. Cooney Director June 19, 1995 - -------------------------------------- /s/ Henry R. Lewis Director June 19, 1995 - --------------------------------------
- 5 - 6 EXHIBIT INDEX
EXHIBIT PAGE NUMBER DESCRIPTION NUMBER - ------- ----------- ------ 4.1 Articles of Organization of Genzyme Corporation. Filed as * Exhibit 3.1 to Genzyme Corporation's Form 10-K dated for the year ended December 31, 1994 (File No. 0-14680) and incorporated herein by reference. 4.2 By-laws of Genzyme Corporation. Filed as Exhibit 3.2 to * Genzyme Corporation's Form 8-K dated December 31, 1991 (File No. 0-14680) and incorporated herein by reference. 4.3 Amended and Restated Rights Agreement, dated as of October * 13, 1994 between Genzyme Corporation and American Stock Transfer and Trust Company. Filed as Exhibit 4 to the Genzyme Corporation's Current Report on Form 8-K filed on December 30, 1994 (File No. 0-14680) and incorporated herein by reference. 5.1 Opinion of Palmer & Dodge as to the legality of the 7 securities registered hereunder. Filed herewith. 23.1 Consent of Coopers & Lybrand L.L.P., independent 8 accountants. Filed herewith. 23.2 Consent of Palmer & Dodge (contained in Opinion of Palmer * & Dodge filed as Exhibit 5.1). 24.1 Power of Attorney (contained on the signature page * hereto). 24.2 Certified copy of Board of Directors' resolution 9 authorizing Power of Attorney. Filed herewith. 99.1 Genzyme Corporation 1990 Equity Incentive Plan, as amended 10 through May 18, 1995. Filed herewith.
- 6 - EX-5.1 2 OPINION OF PALMER & DODGE 1 Exhibit 5.1 PALMER & DODGE One Beacon Street Boston, Massachusetts 02018 Telephone: (617) 573-0100 Facsimile: (617) 22704420 June 19, 1995 Genzyme Corporation One Kendall Square Cambridge, Massachusetts 02139 We are rendering this opinion in connection with the Registration Statement on Form S-8 (the "Registration Statement") filed by Genzyme Corporation (the "Company") with the Securities and Exchange Commission (the "Commission") under the Securities Act of 1933, as amended (the "Act"), on or about the date hereof. The Registration Statement relates to 1,100,000 shares of the Company's General Division Common Stock, $0.01 par value, (the "Shares") offered pursuant to the provisions of the Company's 1990 Equity Incentive Plan (the "Plan"). We have acted as your counsel in connection with the preparation of the Registration Statement and are familiar with the proceedings taken by the Company in connection with authorization, issuance and sale of the Shares. We have examined all such documents as we consider necessary to enable us to render this opinion. Based upon the foregoing, we are of the opinion that when issued in accordance with the terms of the Plan and the options or other rights granted thereunder, the Shares will be duly authorized, validly issued, fully paid and nonassessable. We hereby consent to the filing of this opinion as a part of the Registration Statement and to the reference to our firm under Item 5 thereof. Very truly yours, /s/ Palmer & Dodge - 7 - EX-23.1 3 CONSENT OF COOPERS & LYBRAND LLP 1 Exhibit 23.1 CONSENT OF INDEPENDENT ACCOUNTANTS ---------------------------------- We consent to the incorporation by reference in this registration statement on Form S-8 of Genzyme Corporation for its 1990 Equity Incentive Plan of our reports dated March 1, 1995 on our audits of the consolidated financial statements and financial statement schedule of Genzyme Corporation, the combined financial statements of Genzyme General Division and the combined financial statements of Genzyme Tissue Repair Division all as of December 31, 1993 and 1994 and for each of the three years in the period ended December 31, 1994, which reports are included in Genzyme Corporation's 1994 Annual Report on Form 10-K. /s/ Coopers & Lybrand L.L.P. ---------------------------- Coopers & Lybrand L.L.P. Boston, Massachusetts June 19, 1995 - 8 - EX-24.2 4 CERTIFICATION COPY 1 Exhibit 24.2 GENZYME CORPORATION ------------------- CERTIFICATE OF CLERK -------------------- I, Peter Wirth, being the duly elected and acting Clerk of Genzyme Corporation (the "Company"), a Massachusetts corporation, hereby certify that the following is a true, correct and complete copy of resolutions of the Board of Directors of the Company duly adopted by unanimous written consent dated June 19, 1995; and that said resolutions have not been amended or rescinded and are now in full force and effect. VOTED: That the President, the Senior Vice President, Finance, the Senior Vice President and General Counsel and the Treasurer of the Company, each acting singly, are hereby authorized in the name and on behalf of the Company to (1) execute and file with the United States Securities and Exchange Commission (the "Commission") registration statements on Form S-8 (the "Registration Statements") relating to the registration under the Securities Act of 1933, as amended (the "Act"), of 1,100,000 additional shares of General Division Common Stock under the Company's 1990 Equity Incentive Plan, (2) 400,000 additional shares of Tissue Repair Division Common Stock under the Company's 1990 Employee Stock Purchase Plan, such Registration Statements and any amendments thereto to be in such form as may be approved by the officer executing the same, his execution and filing thereof to be conclusive evidence of this approval; and (3) take any and all other action as they or any of them may deem necessary or advisable to effect such registration. VOTED: That any officer of the Company executing, on behalf of the Company or in any other capacity, the Registration Statements and any and all amendments to such Registration Statements and other documents to be filed with the Commission in connection therewith is hereby authorized to execute the same through or by Henri A. Termeer, David J. McLachlan, Mark A. Hofer, Evan M. Lebson or Peter Wirth, as attorney-in-fact, pursuant to a power of attorney reflecting such authorization. WITNESS my signature and the seal of the Company affixed this 19th day of June, 1995. [CORPORATE SEAL] /s/ Peter Wirth -------------------- Peter Wirth, Clerk - 9 - EX-99.1 5 1990 EQUITY INCENTIVE PLAN 1 Exhibit 99.1 Adopted by directors on March 15, 1990 Approved by shareholders on May 17, 1990 Amended by directors on March 14, 1991 Approved by shareholders on May 16, 1991 Amended by directors on March 17, 1993 Approved by shareholders on May 21, 1993 Amended and restated by directors on August 25, 1994 Approved by shareholders on December 12, 1994 Amended by directors on March 10, 1995 Approved by shareholders on May 18, 1995 GENZYME CORPORATION 1990 EQUITY INCENTIVE PLAN -------------------------- SECTION 1. PURPOSE ------- The purpose of the Genzyme Corporation 1990 Equity Incentive Plan (the "Plan") is to attract and retain key employees and consultants to provide an incentive for them to assist the Company to achieve long-range performance goals, and to enable them to participate in the long-term growth of the Company. The Plan constitutes an amendment and restatement of the Company's 1983 Stock Option Plan, 1985 U.K. Stock Option Scheme, 1988 Officer Stock Option Plan and 1989 Stock Option Plan (collectively, the "Prior Plans"), which are hereby merged with and into the Plan, and the separate existence of the Prior Plans shall terminate on the effective date of the Plan. The rights and privileges of holders of outstanding options and rights under the Prior Plans shall not be adversely affected by the foregoing action. SECTION 2. DEFINITIONS ----------- "Affiliate" means any business entity in which the Company owns directly or indirectly 50% or more of the total combined voting power or has a significant financial interest as determined by the Committee. "Award" means any Option, Stock Appreciation Right, Performance Share, Restricted Stock or Stock Unit awarded under the Plan. "Board" means the Board of Directors of the Company. "Code" means the Internal Revenue Code of 1986, as amended from time to time. "Committee" means a committee of not less than three members of the Board appointed by the Board to administer the Plan, each of whom is a "disinterested person" within the meaning of Rule 16b-3 under the Securities Exchange Act of 1934, or any successor provision. "General Stock" means the General Division Common Stock, $0.01 par value, of the Company. "Company" means Genzyme Corporation. - 10 - 2 "Designated Beneficiary" means the beneficiary designated by a Participant, in a manner determined by the Committee, to receive amounts due or exercise rights of the Participant in the event of the Participant's death. In the absence of an effective designation by a Participant, designated Beneficiary shall mean the Participant's estate. "Fair Market Value" means, with respect to General Stock, TR Stock or any other property, the fair market value of such property as determined by the Committee in good faith or in the manner established by the Committee from time to time. "Incentive Stock Option" means an option to purchase shares of General Stock or TR Stock awarded to a Participant under Section 6 which is intended to meet the requirements of Section 422 of the Code or any successor provision. "Nonstatutory Stock Option" means an option to purchase shares of General Stock or TR Stock awarded to a Participant under Section 6 which is not intended to be an Incentive Stock Option. "Option" means an Incentive Stock Option or a Nonstatutory Stock Option. "Participant" means a person selected by the Committee to receive an Award under the Plan. "Performance Cycle" or "Cycle" means the period of time selected by the Committee during which performance is measured for the purpose of determining the extent to which an award of Performance Shares has been earned. "Performance Shares" mean shares of General Stock or TR Stock which may be earned by the achievement of performance goals awarded to a Participant under Section 8. "Reporting Person" means a person subject to Section 16 of the Securities Exchange Act of 1934 or any successor provision. "Restricted Period" means the period of time selected by the Committee during which an award of Restricted Stock may be forfeited to the Company. "Restricted Stock" means shares of General Stock or TR Stock subject to forfeiture awarded to a Participant under Section 9. "Stock Appreciation Right" or "SAR" means a right to receive any excess in value of shares of General Stock or TR Stock over the exercise price awarded to a Participant under Section 7. "Stock Unit" means an award of General Stock or TR Stock or units that are valued in whole or in part by reference to, or otherwise based on, the value of General Stock or TR Stock, respectively, awarded to a Participant under Section 10. "TR Stock" means the Tissue Repair Division Common Stock, $0.01 par value, of the Company. SECTION 3. ADMINISTRATION -------------- The Plan shall be administered by the Committee. The Committee shall have authority to adopt, alter and repeal such administrative rules, guidelines and practices governing the operation of the Plan as it shall from time to time consider advisable, and to interpret the provisions of the Plan. The Committee's decisions shall be final and binding. To the extent permitted by applicable law, the Committee may delegate to one or more executive officers of the Company the power to make Awards to Participants who are not Reporting Persons and all determinations under the Plan with respect thereto, provided that the Committee shall fix the maximum amount of such Awards for the group and a maximum for any one Participant. - 11 - 3 SECTION 4. ELIGIBILITY ----------- All employees, and in the case of Awards other than Incentive Stock Options, consultants of the Company or any Affiliate capable of contributing significantly to the successful performance of the Company, other than a person who has irrevocably elected not to be eligible, are eligible to be Participants in the Plan. SECTION 5. STOCK AVAILABLE FOR AWARDS -------------------------- (a) Subject to adjustment under subsection (b), Awards may be made under the Plan for up to 7,600,000 shares of General Stock (including outstanding Awards under the Prior Plans) and up to 2,000,000 shares of TR Stock. If any Award in respect of shares of General Stock or TR Stock expires or is terminated unexercised or is forfeited for any reason or settled in a manner that results in fewer shares outstanding than were initially awarded, including without limitation the surrender of shares in payment for the Award or any tax obligation thereon, the shares subject to such Award or so surrendered, as the case may be, to the extent of such expiration, termination, forfeiture or decrease, shall again be available for award under the Plan, subject, however, in the case of Incentive Stock Options, to any limitation required under the Code. General Stock or TR Stock issued through the assumption or substitution of outstanding grants from an acquired company shall not reduce the shares available for Awards under the Plan. Shares issued under the Plan may consist in whole or in part of authorized but unissued shares or treasury shares. (b) In the event that the Committee determines that any stock dividend, extraordinary cash dividend, creation of a class of equity securities, recapitalization, reorganization, merger, consolidation, split-up, spin-off, combination, exchange of shares, warrants or rights offering to purchase General Stock or TR Stock at a price substantially below fair market value, or other similar transaction affects the General Stock or TR Stock such that an adjustment is required in order to preserve the benefits or potential benefits intended to be made available under the Plan, then the Committee, subject, in the case of Incentive Stock Options, to any limitation required under the Code, shall equitably adjust any or all of (i) the number and kind of shares in respect of which Awards may be made under the Plan, (ii) the number and kind of shares subject to outstanding Awards, and (iii) the award, exercise or conversion price with respect to any of the foregoing, and if considered appropriate, the Committee may make provision for a cash payment with respect to an outstanding Award, provided that the number of shares subject to any Award shall always be a whole number. SECTION 6. STOCK OPTIONS ------------- (a) Subject to the provisions of the Plan, the Committee may award Incentive Stock Options and Nonstatutory Stock Options relating to either General Stock or TR Stock and determine the number of shares to be covered by each Option, the option price therefor and the conditions and limitations applicable to the exercise of the Option. The terms and conditions of Incentive Stock Options shall be subject to and comply with Section 422 of the Code, or any successor provision, and any regulations thereunder. (b) The Committee shall establish the option price at the time each Option is awarded, which price shall not be less than 100% of the Fair Market Value of the General Stock or TR Stock, as the case may be, on the date of award. (c) Each Option shall be exercisable at such times and subject to such terms and conditions as the Committee may specify in the applicable Award or thereafter. The Committee may impose such conditions with respect to the exercise of Options, including conditions relating to applicable federal or state securities laws, as it considers necessary or advisable. (d) No shares shall be delivered pursuant to any exercise of an Option until payment in full of the option price therefor is received by the Company. Such payment may be made in whole or in part in cash or, to - 12 - 4 the extent permitted by the Committee at or after the award of the Option, by delivery of a note or shares of General Stock or TR Stock owned by the optionee, including Restricted Stock, valued at their Fair Market Value on the date of delivery, or such other lawful consideration as the Committee may determine. (e) The Committee may provide for the automatic award of an Option upon the delivery of shares to the Company in payment of an Option for up to the number of shares so delivered. SECTION 7. STOCK APPRECIATION RIGHTS ------------------------- (a) Subject to the provisions of the Plan, the Committee may award SARs in tandem with an Option (at or after the award of the Option), or alone and unrelated to an Option. SARs in tandem with an Option shall terminate to the extent that the related Option is exercised, and the related Option shall terminate to the extent that the tandem SARs are exercised. SARs shall have an exercise price of not less than the Fair Market Value of the General Stock or TR Stock, as the case may be, on the date of award, or in the case of SARs in tandem with Options, the exercise price of the related Option. (b) An SAR related to an Option which can only be exercised during limited periods following a change in control of the Company, may entitle the Participant to receive an amount based upon the highest price paid or offered for General Stock or TR Stock, as the case may be, in any transaction relating to the change in control or paid during the thirty-day period immediately preceding the occurrence of the change in control in any transaction reported in the stock market in which the General Stock or TR Stock is normally traded. SECTION 8. PERFORMANCE SHARES ------------------- (a) Subject to the provisions of the Plan, the Committee may award Performance Shares and determine the number of such shares for each Performance Cycle and the duration of each Performance Cycle. There may be more than one Performance Cycle in existence at any one time, and the duration of Performance Cycles may differ from each other. The payment value of Performance Shares shall be equal to the Fair Market Value of the General Stock or TR Stock, as the case may be, on the date the Performance Shares are earned or, in the discretion of the Committee, on the date the Committee determines that the Performance Shares have been earned. (b) The Committee shall establish performance goals for each Cycle, for the purpose of determining the extent to which Performance Shares awarded for such Cycle are earned, on the basis of such criteria and to accomplish such objectives as the Committee may from time to time select. During any Cycle, the Committee may adjust the performance goals for such Cycle as it deems equitable in recognition of unusual or non-recurring events affecting the Company, changes in applicable tax laws or accounting principles, or such other factors as the Committee may determine. (c) As soon as practicable after the end of a Performance Cycle, the Committee shall determine the number of Performance Shares which have been earned on the basis of performance in relation to the established performance goals. The payment values of earned Performance Shares shall be distributed to the Participant or, if the Participant has died, to the Participant's Designated Beneficiary, as soon as practicable thereafter. The Committee shall determine, at or after the time of award, whether payment values will be settled in whole or in part in cash or other property, including General Stock, TR Stock or Awards. SECTION 9. RESTRICTED STOCK ---------------- (a) Subject to the provisions of the Plan, the Committee may award shares of Restricted Stock and determine the duration of the Restricted Period during which, and the conditions under which, the shares may be forfeited to the Company and the other terms and conditions of such Awards. Shares of Restricted Stock shall be issued for no cash consideration or such minimum consideration as may be required by applicable law. - 13 - 5 (b) Shares of Restricted Stock may not be sold, assigned, transferred, pledged or otherwise encumbered, except as permitted by the Committee, during the Restricted Period. Shares of Restricted Stock shall be evidenced in such manner as the Committee may determine. Any certificates issued in respect of shares of Restricted Stock shall be registered in the name of the Participant and unless otherwise determined by the Committee, deposited by the Participant, together with a stock power endorsed in blank, with the Company. At the expiration of the Restricted Period, the Company shall deliver such certificates to the Participant or if the Participant has died, to the Participant's Designated Beneficiary. SECTION 10. STOCK UNITS ----------- (a) Subject to the provisions of the Plan, the Committee may award Stock Units subject to such terms, restrictions, conditions, performance criteria, vesting requirements and payment rules as the Committee shall determine. (b) Shares of General Stock or TR Stock awarded in connection with a Stock Unit Award shall be issued for no cash consideration or such minimum consideration as may be required by applicable law. SECTION 11. GENERAL PROVISIONS APPLICABLE TO AWARDS --------------------------------------- (a) LIMITATIONS ON GRANTS OF OPTIONS AND SARS. Subject to adjustment under Section 5(b), the number of shares subject to Options and SARs granted to any one individual during any fiscal year may not exceed 200,000 shares of General Stock and 300,000 shares of TR Stock. (b) REPORTING PERSON LIMITATIONS. Notwithstanding any other provision of the Plan, to the extent required to qualify for the exemption provided by Rule 16b-3 under the Securities Exchange Act of 1934, and any successor provision, (i) any General Stock, TR Stock or other equity security offered under the Plan to a Reporting Person may not be sold for at least six months after acquisition, except in case of death or disability and (ii) any Option, SAR or other similar right related to an equity security, issued under the Plan to a Reporting Person shall not be transferable other than by will or the laws of descent and distribution, shall not be exercisable for at least six months except in the case of death or disability, and shall be exercisable during the Participant's lifetime only by the Participant or the Participant's guardian or legal representative. (c) DOCUMENTATION. Each Award under the Plan shall be evidenced by a writing delivered to the Participant specifying the terms and conditions thereof and containing such other terms and conditions not inconsistent with the provisions of the Plan as the Committee considers necessary or advisable to achieve the purposes of the Plan or comply with applicable tax and regulatory laws and accounting principles. (d) COMMITTEE DISCRETION. Each type of Award may be made alone, in addition to or in relation to any other type of Award. The terms of each type of Award need not be identical, and the Committee need not treat Participants uniformly. Except as otherwise provided by the Plan or a particular Award, any determination with respect to an Award may be made by the Committee at the time of award or at any time thereafter. (e) SETTLEMENT. The Committee shall determine whether Awards are settled in whole or in part in cash, General Stock, TR Stock, other securities of the Company, Awards or other property. The Committee may permit a Participant to defer all or any portion of a payment under the Plan, including the crediting of interest on deferred amounts denominated in cash and dividend equivalents on amounts denominated in General Stock or TR Stock. (f) DIVIDENDS and Cash Awards In the discretion of the Committee, any Award under the Plan may provide the Participant with (i) dividends or dividend equivalents payable currently or deferred with or without interest, and (ii) cash payments in lieu of or in addition to an Award. - 14 - 6 (g) TERMINATION OF EMPLOYMENT. The Committee shall determine the effect on an Award of the disability, death, retirement or other termination of employment of a Participant and the extent to which, and the period during which, the Participant's legal representative, guardian or Designated Beneficiary may receive payment of an Award or exercise rights thereunder. (h) CHANGE IN CONTROL. In order to preserve a Participant's rights under an Award in the event of a change in control of the Company, the Committee in its discretion may, at the time an Award is made or at any time thereafter, take one or more of the following actions: (i) provide for the acceleration of any time period relating to the exercise or realization of the Award, (ii) provide for the purchase of the Award upon the Participant's request for an amount of cash or other property that could have been received upon the exercise or realization of the Award had the Award been currently exercisable or payable, (iii) adjust the terms of the Award in a manner determined by the Committee to reflect the change in control, (iv) cause the Award to be assumed, or new rights substituted therefor, by another entity, or (v) make such other provision as the Committee may consider equitable and in the best interests of the Company. (i) WITHHOLDING. The Participant shall pay to the Company, or make provision satisfactory to the Committee for payment of, any taxes required by law to be withheld in respect of Awards under the Plan no later than the date of the event creating the tax liability. In the Committee's discretion, such tax obligations may be paid in whole or in part in shares of General Stock or TR Stock, including shares retained from the Award creating the tax obligation, valued at their Fair Market Value on the date of delivery. The Company and its Affiliates may, to the extent permitted by law, deduct any such tax obligations from any payment of any kind otherwise due to the Participant. (j) FOREIGN NATIONALS. Awards may be made to Participants who are foreign nationals or employed outside the United States on such terms and conditions different from those specified in the Plan as the Committee considers necessary or advisable to achieve the purposes of the Plan or comply with applicable laws. In this connection, the provisions of the 1985 U.K. Stock Option Scheme shall remain in effect to govern Awards to Participants in the United Kingdom until otherwise determined by the Committee. (k) AMENDMENT OF AWARD. The Committee may amend, modify or terminate any outstanding Award, including substituting therefor another Award of the same or a different type, changing the date of exercise or realization and converting an Incentive Stock Option to a Nonstatutory Stock Option, provided that the Participant's consent to such action shall be required unless the Committee determines that the action, taking into account any related action, would not materially and adversely affect the Participant. SECTION 12. MISCELLANEOUS ------------- (a) NO RIGHT TO EMPLOYMENT. No person shall have any claim or right to be granted an Award, and the grant of an Award shall not be construed as giving a Participant the right to continued employment. The Company expressly reserves the right at any time to dismiss a Participant free from any liability or claim under the Plan, except as expressly provided in the applicable Award. (b) NO RIGHTS AS SHAREHOLDER. Subject to the provisions of the applicable Award, no Participant or Designated Beneficiary shall have any rights as a shareholder with respect to any shares of General Stock or TR Stock to be distributed under the Plan until he or she becomes the holder thereof. A Participant to whom General Stock or TR Stock is awarded shall be considered the holder of the Stock at the time of the Award except as otherwise provided in the applicable Award. (c) EFFECTIVE DATE. Subject to the approval of the shareholders of the Company, the Plan shall be effective on March 15, 1990. Prior to such approval, Awards may be made under the Plan expressly subject to such approval. - 15 - 7 (d) AMENDMENT OF PLAN. The Board may amend, suspend or terminate the Plan or any portion thereof at any time, provided that no amendment shall be made without shareholder approval if such approval is necessary to comply with any applicable tax or regulatory requirement, including any requirement for exemptive relief under Section 16(b) of the Securities Exchange Act of 1934, or any successor provision. (e) GOVERNING LAW. The provisions of the Plan shall be governed by and interpreted in accordance with the laws of Massachusetts. - 16 - -----END PRIVACY-ENHANCED MESSAGE-----